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Rodgers, P
Three very Manx remedies
George Johnson Prize Trust Essay Winners: 2009
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“Petitions of Doleance, Status Quo and Actions of Arrest are useful Manx
remedies and should be retained” - discuss1
Three very Manx remedies
Paul Rodgers, Articled Clerk2
1
2
George Johnson Law Prize Essay 2009; Essay (c)
Articled to Irini Newby; Articles commenced November 2007
Page 1
~ -.- ~
Table of Contents
~ -.- ~
1.0
INTRODUCTION .................................................................................................................................................... 3
2.0
PETITION OF DOLEANCE...................................................................................................................................... 4
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
3.0
Introduction ..................................................................................................................................................... 4
Usefulness in the Separation of Powers ........................................................................................................... 4
The lack of procedural bureaucracy................................................................................................................. 5
Time Limits ..................................................................................................................................................... 6
Usefulness – Sufficiency of remit and power .................................................................................................. 8
Issues of cost .................................................................................................................................................... 9
The proper parties to petitions of doleance ...................................................................................................... 9
Proposed changes .......................................................................................................................................... 10
Conclusion .................................................................................................................................................... 11
ACTION OF ARREST ........................................................................................................................................... 12
3.1
3.1.1
3.1.2
3.1.3
3.1.4
3.2
3.2.1
3.2.2
3.3
3.3.1
3.3.2
3.3.3
3.4
3.4.1
3.4.2
3.4.3
3.5
4.0
4.1
4.2
4.3
4.4
4.5
5.0
Action of Arrest ............................................................................................................................................. 12
Introduction ............................................................................................................................................. 12
Personal Arrest ........................................................................................................................................ 12
Proprietary arrest ..................................................................................................................................... 13
Purpose of the action of arrest ................................................................................................................. 14
The Mareva Injunction (“Freezing order”) .................................................................................................... 14
Introduction ............................................................................................................................................. 14
Purpose of the Mareva ............................................................................................................................. 15
Comparison of Action of Arrest and Mareva in terms of property ................................................................ 15
Similarities ............................................................................................................................................... 15
Differences ............................................................................................................................................... 15
Summary .................................................................................................................................................. 16
ECHR in Actions of Arrest ............................................................................................................................ 16
Proprietary Arrest .................................................................................................................................... 16
Personal Arrest ........................................................................................................................................ 16
Article 5 ECHR ........................................................................................................................................ 17
Conclusion .................................................................................................................................................... 19
PETITION FOR RESTORATION OF THE STATUS QUO ......................................................................................... 21
Introduction .................................................................................................................................................. 21
Nature of the order ........................................................................................................................................ 21
Interim Injunction ......................................................................................................................................... 22
ECHR Considerations ................................................................................................................................... 23
Conclusion .................................................................................................................................................... 23
SUMMARY .......................................................................................................................................................... 24
Page 2
“A Manxman, to be true to his native character, must be a Conservative ; for
even if he pretended to be a Radical, he could in reality be nothing better
than a hybrid, hanging between the two. According to the few pretended
specimens of the article which he had seen, he believed the Manx Radical, if
he really had an existence, though he very much doubted it, would be found to
be a man either five centuries behind his time or five centuries before it, and
most probably not himself sure which. From his conservative principles he
did not want any change. He must, however, say something on the bad side of
this characteristic. One of its worst features was an opposition to necessary
and salutary reforms. This has ever been an unmistakable feature of Manx
character. So much so, indeed, that great difficulty was generally found in
introducing even the most beneficial changes, there was always the Manx
predilection to stand still as long as they could, until pushed along or shoved
along in some way or another.”
Report on lecture of Rev T.E. Brown given at King William's College
reported in Manx Society volume 16, 1869
1.0
INTRODUCTION
1.
The three remedies to be discussed are all ancient civil suits peculiar to the Isle of Man which
continue to subsist in largely unaltered forms. They are as a group substantially incongruous,
the action of arrest and status quo petitions could loosely be described as injunctive relief but
they are entirely distinct to the petition of doleance which is the Manx form of judicial review.
2.
The usefulness of the remedies and the question of reform will be assessed in the light of
proposed legislative changes and other similar remedies, and their compatibility with human
rights law3. Accordingly, the author will show that two of the remedies are intrinsically useful
to Manx society and should be retained whereas the other remedy has no cause for its
continuation. In such circumstances the Manx “predilection for change” should be overcome
to institute reform.
3
The Human Rights Act 2001 brought the European Convention on Human Rights (“the ECHR”) into force on the
Isle of Man.
Page 3
2.1
PETITION OF DOLEANCE
2.2
Introduction
3.
The petition of doleance is the Manx system of judicial review. It has developed to be a
means for the “ordinary citizen” of the island to obtain redress for perceived injustice4 done
him at the hands of those exercising judicial or quasi-judicial functions5, i.e. administrative
functions delegated by Tynwald. Although the petition has strong similarities to judicial
review in other jurisdictions such as the Channel Islands 6 and England7 there are several
unique aspects to doleance. Firstly, at its core it is a simple and speedy8 remedy
unencumbered by legal formality9. Secondly, it retains many procedural idiosyncrasies. There
are no permission requirements and frivolous actions may be controlled by the right to strike
out actions for undue delay or want of standing. It had long been assumed that such rules
made the courts more accessible to ordinary Manxmen. However, in the recent Petition of
Whittaker10, the petitioner argued that the cost of defending petitions discriminated unfairly in
favour of the wealthy.
2.3
Usefulness in the Separation of Powers
4.
The petition of doleance ergo judicial review is fundamentally useful and indeed necessary in
a democracy. Judicial review is a judicial function which takes place as a result of the
separation of powers doctrine11. The essence of the doctrine is essentially that there should be
4
See Bingham J.A. at 390 in In re Kerruish 1961-71 MLR 374
See Deemster Moore at 355 in In re Ackernley 1961-71 MLR 354 (as approved by Deemster Doyle appearing alone
in ths Staff of Government Division at paragraph 62 in The Petition of Hafner, 2DS/2007, 17 at 62): "In my opinion a
petition of doleance applies only where relief is sought in respect of some legal wrong in proceedings either by a court
or by some other tribunal or by some body exercising judicial or quasi-judicial functions”
6
See discussion of judicial review in the Isle of Man, Guernsey and Jersey in the Guernsey case of Bassington et al v
H.M. Procureur: GLJ Issue 26 p.105 (“Bassington”) at p.117-118
7
Particularly in terms of the grounds of review. The grounds are properly described as illegality, irrationality and
procedural impropriety. (See Deemster Doyle at 36 in MTM v FSC, CP2003/119). This is entirely consistent with the
Diplock categorisation in the GCHQ case See Council of Civil Service Unions v Minister for Civil Service [1985] AC
374. Lord Diplock divided grounds for judicial review into three classes: `illegality', `irrationality', and `procedural
impropriety'; Petitions can now be made on the basis of human rights or European jurisprudence where applicable See
In re Seaside Shipping, a case on MEQRs which apply to the Isle of Man under Protocol 3 of the Act of Ascension.
8
In re Kerruish 1961-71 MLR 374 Bingham J.A. at page 390 (approved by Deemster Doyle at 53 in Hafner,Ibid.)
stated that a petition of doleance provides: "within a comparatively compact community a simple and speedy means
for the ordinary citizen to obtain redress for injustices which, in England, would be remedied by orders of certiorari,
habeas corpus and the like. The essence of the petition of doleance is that it should be simple and, therefore,
unencumbered by legal formality, and also speedy so that the issues can be tried quickly"..
9
In the case of Re Lezayre Parish Commissioners (16th September 2002) (unreported) Acting Deemster Teare QC
stated (at paragraph 15 of the judgment), “A petition of doleance is the form of proceeding in the Island by which
decisions of public bodies may be judicially reviewed. It has the advantages of being a remedy of considerable scope
by bringing a procedure which is simple and unencumbered by legal formality.”; following Bingham J.A. in In re
Kerruish
10
Petition of Grievance of Donald Whittaker of 66 Beech Grove Silverburn Estate Ballasalla Malew read at the sitting
of Tynwald on 7 July 2008
11
The concept of the separation of powers can be traced back to Aristotle in his The Politics.
5
Page 4
a clear demarcation of functions between - to excuse a Manx pun - the three legs of
government - Tynwald12 the Council of Ministers13 and the Judiciary in order that none should
have excessive power and that there should be checks and balances between the legs. 14 To
paraphrase Montesquieu15 were there no separation there would be arbitrary control.
Therefore, the judiciary must be supervisors of the delegated functions preventing abuses of
power. It would appear that the role of the judiciary is particularly important in the Isle of
Man given that the separation of powers is even less perfectly implemented than in the UK16.
2.4
The lack of procedural bureaucracy
5.
The island takes many positive principles from English judicial review including the grounds
of review. However, in recent times England felt it necessary17 to alter its procedure to
introduce additional formalities18 including a permission stage and a three month time limit19.
Despite aiming at improving fairness20 efficiency and cost21, the latter two criteria have been
favoured22 the interests which predominate are those of saving court time and protecting public
authorities23.
12
the Legislature consisting of the Queen Lord of Mann, the House of Keys and the Legislative Council.
the Executive.
14
There is in all such separation systems overlap between the legs. However, the extent of such intereaction, how it
takes place in the Isle of Man, whether it is useful, whether it should be retained are all beyond the scope of this essay.
15
In his De l'Esprit des Lois (1748), “there is no liberty if the power of judging is not separated from the legislative
and the executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator”.
16
Edge, P.W. (1997), Manx Public Law, University of Central Lancashire at 153, “the doctrine of separation of
powers is imperfectly implemented in the United Kingdom, and even less so in the Isle of Man”; See further at 153 179
17
One of the reasons was the increasing number of application for immigration review. See, for example, Cornford ,T. ,
“The New Rules of Procedure for Judicial Review” [2000] 5 Web JCLI at 2.
13
18
See Part 54 of the Civil Procedure Rules of England and Wales.
Which should be regarded as a long stop; See Andrew Finn-Kelcey v Milton Keynes Borough Council [2008]
EWCA Civ 1067
20
See Comford, T. ar 6 [2000] 5 Web JCLI. “There was originally a presumption in favour of granting permission where
the test of arguability was satisfied should be spelt out in the rules (Ch.7 paras 13 and 14) […] What is lacking is the one
measure proposed by Bowman to improve the claimant’s position at the permission stage. Like the old Rules, the new
Rules say nothing about the criteria for the grant of permission and thus leave matters in the rather unpredictable state that
they were in before”.
21
See Comford, T. at 5, Ibid., Although, the Bowman Committee’s terms of reference required it to "put forward costed
recommendations for improving the efficiency of the Crown Office List..." that do "not compromise the fairness or probity
of proceedings, the quality of decisions, or the independence of the judiciary" (Bowman Report 2000, preface p ii) in
practice the Report is overwhelmingly concerned with matters of cost and efficiency.
22
The author has no information or statistics on whether efficiency is an issue in the Isle of Man.
23
See Comford at 7, 10,Ibid. “ as in the case of the permission stage, they are by and large driven by considerations of
saving court time and protecting public authorities rather than of fairness or access to justice.”; “there are no criteria for
protecting the claimant at the permission stage”.
19
Page 5
6.
The Manx situation is the polar opposite24. The courts welcome doleance sometimes even
when improperly pleaded25. The aim of the Manx courts is to make justice as accessible as
possible without allowing frivolous and vexatious claims26. In stark contrast to the English
rules, the law is simply that the petitioner “proves his case”27. Even when an applicant does
provide affidavit evidence cross examination is the exception not the rule28 since it is not
considered necessary29. The author agrees with Bingham JA30 that the system can only retain
its virtues31 if it retains its flexibility32. The current Manx model does so by continuing in a
format largely unchanged since its inception. Insodoing this simple procedure saves both time
and costs33. Therefore, it is submitted that a new rule for judicial review modelled on English
law should be treated with circumspection.
2.5
Time Limits
7.
Manx law relies on the equitable principles of undue delay34. The right to strike out does not
solely depend on time, it depends on the circumstances of each case35, does not apply where
24
Although it has been said that the time limit of 3 months is persuasive
See Deputy Deemster Corlett in In re Holmes, ChD, CP2008/84 at paragraph 26, “It seemed to me as a result of
those exchanges that Mr. Holmes might very well have a cause of action in negligence against the General Registry
and that accordingly he could, if he thought fit, amend his current Petition of Doleance to plead negligence on the part
of the General Registry and that his Petition of Doleance could continue on the basis that it was making a claim for a
declaration of unlawfulness combined with a claim for damages, such a claim being permissible under section 44 of
the High Court Act 1991”.
26
Further, there is yet to be an outcry over swamping of the judiciary with doleance claims
27
Affidavits are not technically necessary. In the case of In Re Kerruish Bingham J.A. stated at 389 : “In England it is
true that the practice (and maybe, by now, the Rule) is that an application for certiorari must be supported by an
affidavit, but the historical development and procedural requirements of certiorari in England are so different from
those of doleance in the Isle of Man that in my view the best guide to follow is that provided by Sir James Gell in the
Corkish case, which is to the simple effect that the petitioner must prove his case as in any other petition. There is,
therefore, no mandatory rule of practice or law that a petition of doleance must be supported by an affidavit”
28
Bingham J.A. in Re Kerruish at 389, “The essence is that the petitioner must prove his case. To this end he may
support his petition by affidavit. If he does, the other side can apply for an Order requiring the attendance of the
petitioner so that he can be cross-examined. In cases where irregularities by defendants are alleged, it may be that
such an Order will usually be refused, for it will not be the plaintiff’s character or conduct or credit which is in
question.”
29
In Re Kinrade CP 2003/138 (14th May 2004) Acting Deemster Moran identified the Court’s discretion to permit
cross-examination in doleance proceedings as being, “an exceptional course rarely allowed save where required by
justice”.
30
As he then was; now Lord Bingham.
31
of simplicity and being unencumbered with formality
32
Bingham J.A in Re Kerruish, Ibid, “This most desirable speed and simplicity, which I do not believe can be
matched in any other mature system of justice, can only be achieved if the requirements of the petition of doleance are
kept flexible in the light of the golden rule laid down by Sir James Gell in 1904, that the petitioner must prove his
case, together with the implied corollary that the means by which he seeks to do so are at his own choice and risk. If
the flexibility of this procedure should, at any future time, bring abuses and frivolous applications in its train, means
can well be devised to remedy matters, for a petition of doleance is above all a discretionary remedy.”
33
See Caine, S. at 9.1 in Law Society response to Petition of Whittaker, dated 28 November 2008
34
The leading authority on time limits in judicial review is set out by Deemster Doyle at paragraph 43 in Petition of
Seaside Shipping, ChD, CP2007/99. It is clear from that recent judgment that in contrast to the present position in
England the Isle of Man applies the common law principle of laches within which there is no absolute time limit for
bringing an action.
35
See Deemster Doyle at 43(1), Ibid.
25
Page 6
there are issues of general public importance36; and will be heightened by showing prejudice
and/or change of position and/or acquiescence37. Clearly this is a flexible system. In contrast,
proposals for new Manx rules moot the idea of establishing a time limit rule identical to that
of England.
8.
That English rule38 states that claims must be filed “promptly” but “in any event not later than
3 months”. However, that rule must be read in conjunction with a second rule39 which gives
the power to extend time under the court’s general case management functions. Accordingly,
there is tension between the two rules. Moreover, the lawfulness of the promptness
requirements was questioned in Burkett40 whilst even England’s own guidance manual
acknowledges that pre-CPR case law41 on extensions of time will continue to apply42.
Accordingly there is a potential for legal action on the time rules thus creating the potential to
restrict accessibility to justice.
36
In re Malew Parish Commissioners (Ch.D.) 2001-3 N-5; as approved by Deemster Doyle at 43(5), “In certain
circumstances a petition of doleance may be permitted to proceed even if there has been a significant delay. This may
be the case where the petition raises on its face matters of general public importance (see for example Malew, R v
Secretary of State for the Home Office ex parte Ruddock [1987] 1 WLR 1482 and the Equal Opportunities
Commission case) and where there is a strong public interest in the resolution of the petition on its merits and it is
otherwise appropriate for it to proceed;”
37
See paragraph 43(1), 43(4), Seaside Shipping; This is similar to the Scottish system as discussed by Lord Hope in
Burkett whose comments were discussed in Seaside
38
See Rule 54.5(1) of the Civil Procedure Rules 1998; See proposed rule 14.23 of the draft Rules of the High Court
2009
39
Under the court's general power of management, “Except where these Rules provide otherwise, the court may- (a)
extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for
extension is made after the time for compliance has expired)”; See proposed rule 7.2(2) of the draft Rules of the High
Court 2009
40
In the Scottish House of Lords case of Regina (Burkett) v Hammersmith and Fulham London Borough [2002]
1
W.L.R. it was held obiter dicta by Lord Hope and Lord Slynn that the promptness requirement was incompatible for
the convention. Lord Hope stated, “The problem is that the word “promptly” is imprecise and the rule makes no
reference to any criteria by reference to which the question whether that test is satisfied is to be judged.”; Lord slynn
stated at 53, “It is a matter for consideration whether the requirement of promptitude, read with the three months limit,
is not productive of unnecessary uncertainty and practical difficulty” Contrast Burkett with Lam v United Kingdom
App. 41671/98), heard 5 July 2001 where the ECHR found that the promptness requirement was proportionate in ‘
pursuit of a legitimate aim’ namely the need to avoid prejudice being caused to third parties who may have altered
their situation on the strength of the administrative decision’ . That decision was not cited in the Burkett case where
Lord Steyn and Lord Hope concluded that the timing rules for judicial review breached the principle of legal certainty
under the Convention. This oversight was noted in the post-Burkett case of Hardy v Pembrokeshire CC [2006] EWCA
Civ 1008 where the Court of Appeal relied upon Lam to justify its refusal to find the domestic timing rules in breach
of the Convention. It expanded its justification for doing so to include reference to the use of ‘ promptly’ within the
Convention itself, and by showing that Convention jurisprudence permits laws that are couched in vague language
provided the citizen is able to see with a reasonable degree the consequences of his action.
41
Based upon Supreme Court Act 1981 section 31(6).
42
The pre-CPR considerations are very similar to Manx rules including exceptions for issues of general public
importance. See case of R. v Secretary of State for the Home Department Ex p. Ruddock [1987] 1 W.L.R. 1482 ; S
Page 7
(Application for Judicial Review), Re [1998] 1 F.L.R. 790
Page 8
2.6
Usefulness – Sufficiency of remit and power
9.
In order to be useful individuals must have full access to the court to test the legality of
inferior tribunals43 and a full range of useful remedies. It is clear from the case law that there
is full access to challenging decision makers. Petitions have proceeded against the full breadth
of the island’s bodies including the Attorney General44, High Bailiffs45, the Council of
Ministers46, Ministers47, the Chief Constable48, Departments49, the FSC50, the gaming board51,
and various tribunals52. Doleance is also waiting to protect individual rights when for
whatever reason the statute has sought not to do so53. Further, petitions of doleance are
effective from a remedies perspective. Following statutory changes 54 it is clear that a full
artillery is available from damages55 through quashing order, prohibition orders56,
43
Joint Committee on Human Rights, Asylum and Immigration (Treatment of Claimants) Bill, 2 February
2004, HC 304 2003-4, at 57 commenting on the possibility of excluding the right to judicial review in the new
immigration appeals system
44
Petition of Winnel (Ch.D) 1993-95 MLR 85 – Conduct of prosecution subject to doleance if not part of judicial
decision or procedure (as restricted by s10(2) High Court Act 1991); In re Fredsriksen (SOGD) 1996-98 MLR 286 –
AG’s discretion to order investigation under section 24 Criminal Justice Act 1990 subject to petition of doleance; In re
Richardson (SOGD) 1996-98 MLR N-9 – AG’s decision to implement request for assistance under s21(2) Criminal
Justice Act 1991 subject to review, see als. In re Hafner (ChD) 2005-06 MLR 430
45
In re Hill – Decision of High Bailiff not to exercise discretion under section 16 Summary Jurisdiction Act 1989
favour of jury trial subject to petition of doleance; In re Hafner (SOGD), 2DS/2007/17 – Decision of Deputy High
Bailiff under s21 Criminal Justice Act 1991 subject to petition of doleance.
46
See Petition of JG Kelly and Jackson Homes, CP2003/13 – decision of the Council of Ministers in respect of
planning application subject to petition of doleance.
47
Petition of Malew Parish Commissioners and Corlett, CP 2001/21 – Minister responsible for planning decision
subject to petition of doleance; See also Tilleard –v- Allinson, CP2008/1
48
In re Culverhouse (SOGD) 2003-05 MLR 558 – decision of Chief Constable not to consent to advocates acting
under section 17A Criminal Justice Act 1990 subject to petition of doleance.
49
In re Manx Ices (SOGD) 2001-03 MLR 64 Department of Local Government and the Environment alleged non
compliance with Article 28 of the EC Treaty re import licensing subject to doleance; Petition of Galloway,
CP2000/70 – Department of Home Affairs decision to transfer defendant to the UK subject to petition of doleance;
See also, In re Newberry, CP2008/29 – Decision of Home Affairs to transfer defendant to Lifers unit in UK subject to
petition of doleance.
50
Re: MTM (Isle of Man) Ltd (ChD) 2003-05 MLR 415 –Review of Financial Services Commission discretion not to
award a corporate service provider’s license.
51
e.g. Arnold Robert v IOM Gaming Control Board 1984-86 MLR 321
52
In re Graley (ChD) 2005-06 MLR 520 – Decision of Interception of Communication Tribunal not to permit
representations subject to petition of doleance.
53
See leading case of In re Kenyon (ChD) 2001-03 MLR 1– If statutory appeal mechanism available, convenient and
appropriate court has discretion to order it to be used. ; see also recent case of Thomas v Department of Education the
appeal division held that the proper mechanism for an appeal against an interlocutory matter in the Work Permit
Tribunal was via petition of doleance.
54
The preamble to the High Court Act 1991 specifically states that it is to “extend the remedies available under
petitions of doleance”
55
Damages can be awarded under three circumstances: firstly, if damages would have been awarded in a private law
action (Damages were awarded In re Harvey 1993-95 (ChD) 1993-95 MLR 415 where a DOLGE official had
measured the position of a building, decided it was wrongly situated, which resulted in a stop order and the petitioner
being ostracised in the community and leaving the IOM. He sought declaration that the building was correctly
positioned and damages. It was held there was sufficient proximity to give rise to a duty of care on official’s part,
negligent misstatement, foreseeable loss, damages awarded. Court directed that when a damages claim under s 44 is
included in a petition of doleance, the cause of action (negligence, fraud, trespass etc) should be specifically pleaded.),
Secondly, under EC law (as it applies to the island under Protocol 3). If EC law is infringed there is a right to
damages; where the infringement is that the state acted outside the limits on its discretion, breach is sufficiently
serious and state has manifestly and gravely disregarded the limits on the exercise of its power (See Wade
Administrative Law, H W R Wade & C F Forsyth, 9th edition, 2004, OUP) . ; Damages are also available to afford just
satisfaction for a human rights breach (Section 8 Human Rights Act 2001).
56
Order telling a body not to perform a particular unlawful act held.
Page 9
mandamus57, declaration58, injunction to the rarely used habeus corpus.
2.7
Issues of cost
10.
The grievance of Whittaker59 was that planning decisions frequently appealed by doleance
forced ordinary people to defend them. In his view objectors should be able to participate in
doleance without risk of cost penalties”60. The author avers the only potential victim in such
scenario is the defendant and that two general costs rules afford him ample protection. Firstly,
costs follow the event61 and secondly, a party who comes forward only to defend a judicial
decision in his favour should not pay costs 62. Taking the two rules together, a defendant to a
planning decision in his favour can have his costs and eat them. Moreover, the current rules63
provide an equitable approach to objectors’ costs. Tilleard64 confirmed that an unsuccessful
party would usually only be responsible for one set of costs 65 except where a party deals with
a separate issue or where distinct interests justify separate representation66. This rule equitably
prevents a petitioner from paying costs to multiple parties arguing the same point as in
Whittaker’s case67.
2.8
The proper parties to petitions of doleance
11.
The court has the power to strike out claims for want of proper standing. Accordingly a more
prescient question is – does doleance have fair rules of standing?68. Firstly, a party aggrieved69
57
An example of a Mandamus order is the Petition of Crowe and Gill (ChD) 1921-51 MLR 247. That case held that
(i) mandamus orders are never granted against Crown or its servants; (ii) They are only granted where there is a legal
right of the Petitioner to the performance of some duty (iii) The concern of court is whether the discretionary powers
of an administrative body have been exercised or not, not whether they have been exercised properly.
58
Petition of Reilly (ChD) 1981-83 MLR 118 - Petitioners initially prayed for order to compel Local Government
Board to issue a “stop” notice in connection with alleged illegal development of land by 3 rd party. Petitioners
subsequently amended their petition to seek declaration that the Local Government Board was guilty of an abuse of its
discretionary powers. It was held that doleance was the proper means of obtaining a declaratory judgement relating to
the conduct of an administrative body.
59
Although couched generally and taken by Tynwald in general terms
60
Further, his petition was based upon other baseless assumptions, i.e. that this followed from a situation in which
only a third of costs are generally recoverable even when the case is won.
61
which means that the losing party must pay the other side’s costs
62
See R v Liverpool Justices ex p Robert [1960] 2 All ER
63
See paragraph Allitson v Tilleard at 41, Ibid. approving In re Corner House Research (2005) EWCA Civ 192
64
Ibid.
65
See Bolton Metropolitan District Council v Secretary of State for the Environment [1996] 1 All ER 184
66
Ibid. ; See also R v Panel on Take-overs and Mergers ex p Datafin plc [1987] QB 815
67
The defendant parties arguably had no distinct interests in Whittaker’s case, but there were bi-partite, or even tripartite representation of the same issues and interests. See Early Publication of the Select Committee on the Petition
for Redress of Grievance of Donald Whittaker, 9th February 2009. BADRA’s evidence to the Select Committee made
it clear that individual residents gave powers of attorney to BADRA to represent them through one Advocate. Further,
the oral evidence confirmed that the position of the Malew Parish Commissioners was entirely in line with BADRA.
BADRA later withdrew when they realised that this was the case. Further, Mr Whittaker had no objections different to
those of the other parties.
68
See paragraph 27 in In re Cussons 2003, “The advantage of the petition of doleance is that it has been a single
simple procedure, which, as described by Glidewell J.A. in Re Nicholson "is obviously a remedy of considerable
Page 10
always has standing; secondly, a non party aggrieved will have standing only if the Attorney
General consents; and thirdly, where a petitioner seeks only to address a public wrong and the
Attorney General takes a neutral stance, there is only a discretion to proceed 70. If as in the
case of In re Cussons there are what could be described as utilitarian objectives the case will
clearly proceed. The only possible limit of the current system is the theoretical possibility that
such cases could be “sifted” at the AG’s discretion. In Cussons it was recognised obiter dicta
that the law could be expanded to allow standing even where the AG did object71. The author
would welcome the courts to adopt this approach which would simplify the rules and prevent
what Lord Diplock said would be a “grave lacuna” if such a technical rule prevented
accountability”72.
2.9
Proposed changes
12.
The government is currently considering the creation of a new Ombudsman73. This appears
to be an informal mechanism for addressing complaints against government administration.
However, alarm bells may start to ring when one reads the decision of the Deputy Bailiff in
the Guernsey case of Century74. He relied upon the existence of a similar Review Board75 as a
scope and utility, and is intended to lead to a wrong being righted as soon as possible". To apply further tests or
different attempts to analyse the circumstances where an applicant to a petition has locus standi may merely seek to
inhibit the development of the law rather than to assist it. The statement as to the law given by Glidewell J.A. in Re
Nicholson in his three stated propositions, correctly, in our judgment, describes the law, save for the deletion of 'it may
be that' in the following sentence: "Thirdly, where a petition is brought by a private individual to address a public
wrong, as in the case of In re Kerruish, and the Attorney General, though not giving his consent, does not object to the
proceedings, it may be that the court has a discretion to allow the petition to proceed."
69
An individual or company that has suffered or is likely to suffer “damage peculiar to himself”
70
The exercise of discretion will take into account the credentials of the applicant
71
See paragraph 28, Ibid., “We leave open the question whether the Court should now accept a discretion in the
circumstances described above even if the Attorney General does object to the proceedings. In an appropriate case it
might lead to an injustice if the only bar to the court proceedings was the Attorney General's attitude to the petition.”
72
Lord Diplock in Fleet Street Casuals approved at 28 in In re Cussons. That said, if a petition were prevented from
proceeding solely on the basis of the AG’s decision there would be the fall back of making further petition of doleance
of his decision.
73
See paragraph 534 to 559 in the Early Publication of the Select Committee on the Petition for Redress of Grievance
of Donald Whittaker, 9th February 2009; “Chairman (Steve Rodan MHK):It is intended that an ombudsman system to
be known as the Tynwald Commissioner for Administration be brought in and we understand that that is in hand and
consultation is about to start with the public but this is to be a system – I just want you to confirm your understanding
– where complaints against Government administration are to be addressed and not a system of judicial review of
court decisions, which is something different”
74
As referred to in Bassington v HM Procureur [1998] 26 GLJ 86. “The Deputy Bailiff in giving judgment in Century
(above) at p.234 at first instance opted for "judicial restraint" rather than "judicial activism" to use phrases taken from
de Smith woolf and Jowell on judicial Review of Administrative Action (Fifth Edn), chapter 1, giving as his reasons,
first, the existence of the Administrative Decisions (Guernsey) Law 1986 which set up an Administrative Board to
hear complaints; secondly, the smallness of the jurisdiction; and thirdly, the fragility of its institutions, there being no
government, prime minister or cabinet. He feared a concerted attack by English lawyers acting at one remove through
Guernsey advocates. The approach of the Deputy Bailiff could not be better expressed than in the following passage:"However, with the smallness of our institutions what is apparently a serious failure to go about an act of government
in the right way can be put right by a letter or a telephone call and not a judicially refined missile costing in time and
resources an amount wholly out of proportion to the perceived wrong".
75
Administrative Decisions (Review) (Guernsey) Law 1986. As Dawes commented in his Laws of Guernsey, Hart
Publishing (2003) at 46, “Apart from judicial review there is a Law which appears to have been an earlier attempt to
provide a remedy against poor administrative decision making. This is found in the seldom used Administrative
Decisions (Review) (Guernsey) Law 1986. By section 1any person aggrieved by a decision or action of any States
Page 11
factor in dismissing a judicial review application. It would be a grave shame if a similar
consideration were adopted here.
13.
Although the remit of the ombudsman is currently unclear, what is clear is that it would not
oust the jurisdiction of doleance76. The comments of Lord Donaldson77 are particularly
pertinent. He said, “(the judges) are an independent estate of the realm and it's not open to the
legislature to put us out of business. And so we shall simply ignore your ouster Clause”78 .
14.
Therefore, the new role would have the result of putting into existence two mechanisms of
review of administrative functions. This would create the opportunity for arguments with
regard to jurisdiction and abuse of process. A veritable feast of legal uncertainty which could
only prejudice the ordinary citizen.
2.10 Conclusion
15.
There has only been opportunity for a whistle-stop tour of the petition of doleance. However,
it is averred that the current procedure provides a fair and just method for dealing with
doleance well-suited to a small jurisdiction. It is the author’s view that the partial adoption of
English JR rules or the creation of an ombudsman can only complicate matters. It may be that
in those circumstances Whittaker’s fears of a system for the wealthy are realised but they are
not a present.
committee may apply to the States Supervisor, or HM Greffier in the cae of a complaint against the Advisory &
Finance Committee. The application is considered by the Supervisor or HM Greffier and, if satisfied that the
circumstances justify a review of the matter, he must refer the complaint to the Review Board[…] complaints will not
be referred if the applicant has not a sufficient personal interest in the subject matter or if there has been a judicial
remedy which has, unreasonably been utilized”.
76
The role of Ombudsman would not oust the right to petition of doleance since the role of the judiciary in the
separation of the powers cannot be ousted with major constitutional reform.
77
On hearing of the government’s attempts to force through Parliament watertite ouster legislation in the Asylum and
Immigration (Treatment of Claimants etc) Bill (which sought to restrict the rights of the courts by ousting their powers
of judicial review)
78
The Guardian, 26 April 2005 as reported at 38 in Horne, H., Judicial Review: A short guide to claims in the
Administrative Court, Research Paper 06/44, House of Commons Library, “Derry Irvine put his foot down implicitly
and they abandoned that. […] Had they successfully pursued the ouster clause then we certainly should have been in a
very interesting constitutional crisis. If they really did that - and people like James Mackay (the former Tory lord
chancellor) thought as a matter of wording it was wholly effective and stopped up every loophole - we would simply
have to say: 'We (the judges) are an independent estate of the realm and it's not open to the legislature to put us out of
business. And so we shall simply ignore your ouster clause’.
Page 12
3.1
ACTION OF ARREST
3.2
Action of Arrest
3.2.1
16.
Introduction
The action of arrest is a unique Manx remedy which is said to have developed in response to
the island’s unique geographical situation79. The action gives a creditor with good grounds for
supposing that their debtor is “about to leave the island” the right to arrest him80 and/or his
property81. What one may term the personal arrest and the proprietary arrest are separate
causes of action. In both cases application may be made ex parte with supporting affidavit.
Further, arrest is only available if the court is satisfied that the creditor has a good cause of
action over the debtor and good grounds for supposing the defendant is about to depart the
island based solely on affidavit evidence from the creditor.
3.2.2
17.
Personal Arrest
To arrest his debtor a creditor must satisfy a Deemster by affidavit that he has good grounds
for supposing that the debtor is about to depart the island without settling the debt and will
“remain absent” without settling the debt or submitting to the jurisdiction of the Isle of Man.
There are no cases which clarify the circumstances in which a personal arrest would be
justified82. If the Deemster authorises arrest, the arrest is effected by a Police Constable who
detains the arrestee in custody until he appears in court in respect of his debt 83. This must take
place at the next available sitting of the court. Once the debtor has agreed to submit to the
jurisdiction he must be released84.
79
See Deemster Doyle 60 in Raad v Sturgeon, judgment of 1 October 2003 [ (1) 2003-05 MLR N-9] approving
Deemster Hayward’s comments.
80
Section 1(1) Action of Arrest Act 1953 - “Process in an action for the arrest of the person of a debtor shall be
issued by a Deemster on his being satisfied on the affidavit of the creditor or his duly authorised agent that such
creditor has a good cause of action against the debtor and that the creditor has good grounds for supposing that the
debtor is about to depart from this Isle and remain absent therefrom without settling the cause of action or binding
himself irrevocably to submit to the jurisdiction of Her Majesty's High Court of Justice of the Isle of Man with respect
thereto.
81
See section 3 of the Action of Arrest Act 1953 as amended by Preferential Payments and Other Acts (Financial
Adjustments) Act 1973; The procedure for the arrest of property is slightly different
82
Although guidelines have been laid down for proprietary arrest in Raad v Sturgeon.
83
See section 1(2) of the Action of Arrest Act 1953
84
See section 1(4) of the Action of Arrest Act 1953
Page 13
3.2.3
18.
Proprietary arrest
Having once been or having been considered ancillary, the action of arrest of property is now
enshrined in statute as an independent cause of action85. There are two procedures available
for proprietary arrest - an ex parte application along the lines of the personal arrest or a direct
application to the Coroner stating an intention to make the ex parte application with “all due
diligence”. In both cases the creditor must have good grounds for believing that his debtor is
about to leave the island86 and additionally that the debtor is “removing, or intends to remove”
at least a substantial sum of the debt from the island and “does not intend to settle the cause of
action”87. At the ex parte stage, the creditor must also swear an affidavit setting out his case
and stating that the cause of action “is just and reasonable” and that the “absence of the
defendant from the Isle of Man will materially prejudice the plaintiff in the prosecution of his
action”88.
85
This is clear from section 3 of the Action of Arrest Act 1953 as amended by the Preferential Payments and Other
Acts (Financial Adjustments) Act 1973
86
but not that he will remain absent as in the personal arrest.
87
The factors relevant to the dissipation of assets are set out in Raad v Sturgeon 2003-05 MLR N-11, and at SJ
2003/119, judgment of 30th October 2004, paragraph [74](reported online online), “(1) the nature of the assets which
are to be the subject of the proposed injunction and the ease or difficulty with which they could be disposed of or
dissipated. The plaintiff may find it easier to establish the risk of dissipation of funds in a bank account or of
moveable chattels than the risk that the defendant will dispose of real estate, such as his house or office. Nevertheless
in appropriate cases injunctions can be and have been granted where the defendant's only known asset within the
jurisdiction is his house. (for example if he has put it up for sale or otherwise indicated an intention to go and live
abroad).
(2) The nature and financial standing of the defendant's business.
(3) The length of time the defendant has been in business. Stronger evidence of potential dissipation will be needed
where the defendant is long established with a reasonable reputation than where little or nothing is known or can be
ascertained about the defendant.
(4) The domicile or residence of the defendant. The court will be less ready to infer that a defendant who has been
based in the Isle of Man for very many years and has a home or established business here will remove or dissipate his
assets. On the other hand however if the defendant though based in the Isle of Man has no strong or permanent or well
established links with the Island or no continuing commitment to the Island and there is an indication that he may
leave the Island, the inference that there is a real risk that assets may be dissipated and a judgment may go unsatisfied
in the Isle of Man may be more readily drawn.
(5) If the defendant is a foreign entity the country in which it has been registered or has its main business address and
the availability or non availability of any machinery for reciprocal enforcement of Manx judgments in that country. If
such machinery does exist the length of time it would take to implement it may be an important factor.
(6) The defendant's past or existing credit record.
(7) Any intention expressed by the defendant about future dealings with his Manx assets or assets outside the
jurisdiction.
(8) Connections between the defendant and any other connected entities who have defaulted on judgments. This may
be of particular relevance when considering companies within the same group.
(9) The defendant's behaviour in response to the plaintiff's claims. A pattern of evasiveness and unwillingness to
participate in the litigation or raising thin defences after accepting liability or total silence, or late applications to
vacate hearing dates, or discharging legal representatives, or failure to respond promptly or at all to correspondence, or
the failure to disclose assets, or taking steps to transfer assets may all be factors which assist the plaintiff. The court
however will have to have regard to the full picture and consider any information or points that may explain what
would otherwise appear as evasiveness or unwillingness on the part of the defendant.
88
and the “enforcement of any execution or Order of the Court consequent upon such proceeding”.
Page 14
3.2.4
19.
Purpose of the action of arrest
It has been argued that the purpose of the arrest is to ensure that the defendant submits to the
jurisdiction89. Deemster Cowley said of the predecessor act in In re Lethaby90 at 396, “I think
the fundamental idea of the Manx Chancery action of arrest was to ensure an appearance by
the defendant, and that the arrest of his goods was an additional protection available to the
creditor”. He later stated91, “the effect of this statute is, I think, quite clearly to establish that
the arrest of the person of a debtor is purely and simply confined to the enforcement of his
appearance, but that in addition there is an ancillary remedy under proper conditions and after
prima facie proof to arrest his effects and await judgment of the court.”.
3.3 The Mareva Injunction (“Freezing order”)
3.3.1
20.
Introduction
As in proprietary arrest the Mareva empowers a creditor to apply ex parte for an order
restraining a Defendant from dealing with assets or removing them from the jurisdiction
pending trial. The Mareva is an equitable interim remedy92 and as such the court will usually
require an undertaking in damages93 and consideration of the balance of convenience94. In
addition, the court must be satisfied of three Mareva-specific conditions: firstly, that the
plaintiff has a good arguable case concerning any cause of action; secondly, that there is a real
risk of the defendant dissipating assets95 from the jurisdiction; and thirdly, that it would be
just and convenient in all the circumstances96.
89
See section 1(1) to 1(4) of the Action of Arrest Act 1953 and the comments of Deemster Doyle in Raad v
Sturgeon (2) at [….]; Deemster Cowley in In re Lethaby (ChD) 1921-51 MLR 386 at 396, “I think the fundamental
idea of the Mnax Chancery action of arrest was to ensure an appearance by the defendant, and that the arrest of his
goods was an additional protection available to the creditor”; at 397, “the effect of this statute is, I think, quite clearly
to establish that the arrest of the person of a debtor is purely and simply confined to the enforcement of his
appearance, but that in addition there is an ancillary remedy under proper conditions and after prima facie proof to
arrest his effects and await judgment of the court.”
90
Ibid.
91
Ibid., at 397
92
Arising under section 42 of the High Court Act 1991
93
Although this is no strictly speaking essential. See Lord Diplock in Hoffman La Roche v Secretary of State for
Trade and Industry [1975] Appeal Cases page 295 as approved by Deemster Doyle at paragraph 37 in Raad v
Sturgeon (1), “The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to
damages. All it can do is refuse the application if he declines to do so.”
94
See Lord Diplock at 510 in the House of Lords case of American Cyanamid Co. v Ethicon[1975] 1 All ER 504
95
The factors outlined in relation to actions of arrest apply equally to mareva injunctions; see Deemster Doyle at
[70] to [74] in Raad v Sturgeon (1) as well as headnote at MLR N-11, “In applications for orders under the Action of
Arrest Act 1953, s3, and for a Mareva injunction, the court should consider the following factors”
96
Deemster Doyle at 127 in Bitel LLC v Kyrgyz Mobil , CA2006/7. “To persuade a Deemster to press the button on
one of the law’s two nuclear weapons namely a draconian freezing injunction (cf Donaldson LJ in Bank Mellet v
Nikpour [1985] FSR 87 at 92) an applicant must satisfy the Deemster that:
(1) he applicant has a good arguable case against the defendant namely one which is more than barely capable of
serious argument, but not necessarily one which the judge considers would have been a better than 50 per cent chance
of success (Mustill J in the Ninemia Maritime Corporation case [1983] 2 Lloyd’s Rep 600 at 605);
(2) here is a real risk that judgment will go unsatisfied by reason of the disposal by the defendant of his assets unless
he is restrained by court order from disposing of them. The applicant must produce solid evidence on which the court
Page 15
3.3.2
21.
Purpose of the Mareva
The basis and purpose of a freezing injunction is to protect a claimant from the risk of
improper dissipation of assets, which would defeat the efficacy of any judgment he might
obtain97. Although not being an independent cause of action like the action of arrest, the
Mareva injunction has powers over property similar to the action of arrest.
3.4
Comparison of Action of Arrest and Mareva
3.4.1
22.
Similarities
The above analysis shows that action of arrest and the Mareva injunction are two civil
injunctions which share significant commonalities in relation to the restraint of property. Both
remedies give a creditor the right to apply ex parte to seize assets within the jurisdiction98 so
as to prevent his debtor dealing with them. Further, the factors relevant to assessing risk of
dissipation are equally applicable to both remedies99. In both the action of arrest 100 and the
Mareva injunction101 the court will perform a balancing exercise between the rights of the
plaintiff and the rights of the defendant so as to afford fairness to both parties. Further, both
methods have substantial requirements which act as safeguards to the rights of the defendant.
3.4.2
23.
Differences
The two most profound differences are that the Mareva does not give a Plaintiff the power to
apply for arrest102and the action of arrest does not require an undertaking in damages103
(whereas the Mareva does subject to exceptions104). Moreover, the right to apply for an action
could come to the view that there is a real risk that the assets will be dissipated if the injunction is not granted;
(3) t would be just and convenient in all the circumstances of the case to grant the relief sought.”
97
See Deemster Kerruish in Kakay v Frearson , 5th October 2006 applied by Deemster Doyle at 129 in Bitel LLC v
Kyrgyz, Dec 2006
98
Although a Mareva can of course extend worldwide (see for example, . The action of arrest cannot.
99
See Deemster Doyle in Raad v Sturgeon (2) at 70 -74
100
See paragraphs 61, 62 Raad v Sturgeon (1), 1st October 2003; Repeated at paragraph 70 in Raad v Sturgeon (2),
th
30 October 2003
101
See Deemster Kerruish in Kakay v Frearson at [18], “the correct test is to consider objectively the overall justice”’
In Series 5, Laddie argued that the balance of convenience issue will need to be considered in most cases; American
Cyanamid Co v Ehticon Ltd (No. 1) [1975] AC 396; It is always appropriate to consider the balance of convenience
with regard to an interim injunction; see for example Customs and Excise Commissioners v Anchor Food ltd (No.2)
[1999] 1 WLR 1139
102
in the absence of test cases proving the contrary
103
as clarified by Deemster Doyle in Raad v Sturgeon (1)
104
The cross-undertaking in damages can be seen as a procedural safeguard which protects the defendant's article 6
rights. However, there are situations in which the cross undertaking can be dispensed with (the “dispensation rule”). In
the recent English High Court case of United Securities & Exchange Commission v Manterfield [2008] EWHC 1349
(QB) it was argued for the first time that the dispensation rule was incompatible with the principle of equality of arms
under Article 6. Sir Charles Grey dismissed that argument out of hand citing the principle that article 6 only protects
procedural rights not substantive rights (Approving the principle as confirmed in Holland v Lampen-Wolfe [2000] 1
Page 16
of arrest is limited to a very particular situation – a civil creditor enforcing against a debtor
who not only has assets in the jurisdiction but has caused the defendant to believe he is
leaving the island. In contrast, the powers of a Mareva are much wider extending extraterritorially105 and the procedures are substantially different.
3.4.3
24.
Summary
There are many similarities between the Mareva and the Action of Arrest in terms of the
restraint of property and a balancing test. However, whereas the Mareva has a wider
jurisdiction in relation to diverse causes of action the action of arrest has a very specific
jurisdiction in relation to civil debt which only accrues in very narrow circumstances.
3.5
ECHR in Actions of Arrest
3.5.1
25.
Proprietary Arrest
It is respectfully submitted that in Raad v Sturgeon Deemster Doyle only found the
proprietary arrest to be compatible with Article 1 of the First Protocol to the convention106. He
based his view on the public interest in the cause of action based upon the island’s unique
geographical location107. The author endorses such compatibility and affirms the purpose
outlined at 3.14 above as evidence of a lawful public interest.
3.5.2
26.
Personal Arrest
Unbeknown to some, the strongest Convention right against personal arrest is Article 1 of the
Fourth Protocol which provides: “No one shall be deprived of his liberty merely on the
ground of inability to fulfil a contractual obligation.” The Isle of Man has not signed up to
that Protocol and in any event some commentators place weight on the words “merely” and
W.L.R. 1573 HL). Therefore, the defendant's inability to have a financial remedy for his costs in the event of the
freezing order proving ill-founded was irrelevant. On appeal, the argument was not pursued (On appeal Waller LJ
paragraph 27 reported [2009] EWCA Civ 27 commented that it was “rightly not pursued”.
105
The two most significant powers of the Mareva are:- Firstly, that it is available in support of a good cause of action
and requires no evidence of debt (Only a risk that the defendant will dissipate his assets) and Secondly, it can be used
to freeze assets outside the jurisdiction and to support overseas actions (See section 56B High Court Act 1991 and
Securities and Investments Board v Braff, 1996-98 MLR ). The other ways that the Mareva differs are that it not
available for small sums, it is available to any party (not just the debtor), is available against companies, requires
proceedings to be issued promptly (not within 48 hours), allows ancillary orders to be attached to Mareva (See for
example, Petition of Asset Management (in Liquidation) – discovery of assets on a worldwide basis.
106
See for example, headnote to Raad v Sturgeon (1), 2003-05 MLR N-9. “Nor did the procedure under section 4
breach the First Protocol to the European Convention of Human Rights, art. 1, guaranteeing the peaceful enjoyment of
property, since it was provided for by law and was in the public interest because of the geographical location of he
island”; Section 4 details the form of order available in relation to section 3 of the Act.
107
See Raad v Sturgeon (1)
Page 17
“inability”. Accordingly, it is argued that an ability to pay coupled with a refusal to pay could
attract imprisonment108.
27.
It is submitted that the question posed obiter dicta by Deemster Doyle in a recent
imprisonment for debt case109 is most relevant to personal arrest. i.e. is the personal arrest
compatible with Article 5 of the ECHR?
3.5.3
28.
Article 5 ECHR
Article 5 is a right that is engaged at the point of imprisonment. There are 6 exceptions 110 but
arrest for a civil cause of action could only conceivably fall in to 5(1)(b) 111 which provides
that ,
“No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law: (b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law;”
108
P van Dijk and G J H van Hoof, Theory and Practice of the European Convention on Human Rights, 2nd edn
(1990), 488-489 as discussed in terms of Scottish law in 'State of ratifications of human rights instruments', E.L. Rev.
1996, Supp (Human rights survey), 51-62
109
See Deemster Doyle at paragraph 13 in Kewley and Kewley v Megson, CLD, 3rd April 2008 (reported online only) “The petitioner would have to answer the following questions:1 is imprisonment for civil debt compatible with Article 5 of the ECHR?;
2 Is it in accordance with the procedures prescribed by law?;
3 would it fall within paragraph 1(b) of the Convention; would imprisonment be a proportionate response?”
This was in the context of an application seeking imprisonment for debt. The island’s Imprisonment for Debt Act
1928 gives a creditor the right to apply for a debt-defaulter to be committed to prison for up to 6 weeks on evidence of
non-payment of a debt. By law the creditor need only prove that the defaulter had means of paying the sum due under
order and that he has neglected or refused to pay it. Alas, even the de minimus requirements proved too much for the
two ardent pursuers of the imprisonment of their fellow man made famous by the case law. Therefore, His Honour had
no need to consider whether imprisonment for civil debt was enforceable in the face of article 5. It is the author’s
view that this act must be abolished since it fulfils no purpose except punishement since the imprisonment does not
extinguish the debt. However, a review of the usefulness and legality of that Act is beyond the scope of this paper.
110
Article 5
Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order
to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after having done so;
(d)
the detention of a minor by lawful order for the purpose of educational supervision or his lawful
detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country
or of a person against whom action is being taken with a view to deportation or extradition.
111
As indicated by Deemster Doyle in Kewley
Page 18
29.
At first glance there is prima facie compatibility with the wording of the section. The acts are
made by law112 and they have a clear procedure113. The terms “legal” and “prescribed by law”
refer to conformity with national law and procedure and are for the national courts to interpret
and apply such law114. Furthermore, a “wide margin of interpretation” is afforded to the
decisions of domestic courts115.
30.
However, the more fundamental question is – “Can arrest or imprisonment ever be
proportionate responses to a failure to fulfil civil contractual obligations?”116. Any restriction
on a freedom guaranteed by the Island under the Convention must be “proportionate to the
legitimate aim pursued”117. A measure will satisfy the proportionality test only if three
conditions are met118:1. the legislative objective is sufficiently important to justify limiting a fundamental
right
2. the measures designed to meet the objective are rationally connected to it (they
cannot be arbitrary, unfair or based on irrational considerations.
3. The means used to impair the right must be no more than is necessary to accomplish
the legitimate objective
31.
Is it averred that there is a sufficiently important legislative objective which can be derived
from the statute and the history of the action of the arrest. That objective is, a fair means of
forcing debtors to appear for their debts to Manx citizens before fleeing the island. Like the
proprietary arrest, this can also be justified based upon the island’s unique geographical
location. In particular, the lack of border controls make it unusually simple to leave the
jurisdiction119. The action of arrest was once open to abuse120, but over time it has developed
112
The Action of Arrest Act 1953 was lawfully enacted by Tynwald
See section 1 of the Act,,Ibid..
114
In the relatively recent case of Worwa v Poland (2006) 43 E.H.R.R. 35, the ECtHR held at paragraph 58114, “The
Court recalls that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5(1)
essentially refer back to national law and state the obligation to conform to the substantive and procedural rules
thereof. It is, in the first place, for the national authorities, notably the courts, to interpret and apply domestic law but
the Court can and must exercise a certain degree of control.”; See also paragraph 58 in Bozano v France (1986) 9
EHRR 297
115
As noted by Deemster Doyle notes in Raad in Sutrgeon(1),
116
This is a question that has not been considered in the case law of the ECtHR.
117
See para 49 in Handyside v United Kingdom (1976) 1 EHRR 737 at 754 in Pannick, Human Rights Law at 3.10,
page 69
118
See Privy Council (Antigua and Bermuda) in de Freitas v Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands and Housing [1999] 1 AC 69
119
See letter from Lord Goodlad Chairman of the House of Lord Constitutional Select Committee to the Chief
Minister, February 2009, “Letter from the Chairman to the Chief Minister, 25 February 2009 , “The Constitution
Committee of which I am Chairman is appointed "to examine the constitutional implications of all public bills coming
before the House; and to keep under review the operation of the constitution". In connection with the first of these
tasks, the Committee has been engaged in correspondence with the Government on the Borders, Citizenship and
Immigration Bill which is currently under consideration in the House of Lords. The Committee would like to seek
113
Page 19
into a statute with many safeguards to protect the debtor’s interests121. In particularly, release
is obtainable under rapid and certain conditions122 and the actionee may be awarded damages
if the actioner does not pursue his action with due diligence123.
3.6
Conclusion
32.
For the reasons set out above the action of arrest should be retained in its current form. Cynics
may see the action as a means of avoiding undertakings in damages in Mareva injunctions.
However, the court has made it clear that an arrest action will not be sanctioned on that basis
alone124.
33.
It may be questioned whether there is any need for personal arrest given the other nuclear
options available. However, it is averred that subject to the many safeguards, the action is a
unique means for securing incontrovertible service of an action and thus speeding up the
determination of rights.
34.
Further, in the modern age there is a tendency for single individuals to be indebted to large
classes of people. For example, at present the whereabouts of the notorious Alan Stanford125
your views on Clause 46 in Part 3 of the bill which proposes to amend the arrangements for the common travel area
that exists between the United Kingdom, the Republic of Ireland, and Jersey, Guernsey, and the Isle of Man. It seeks
to amend the Immigration Act 1971 to make travel between the different parts of the common travel area subject to
immigration control. I have enclosed a copy of the Committee's correspondence with the Government on this issue. As
the Bill is currently under consideration in the House of Lords we would appreciate as early a reply as possible to
allow the Committee to make its report to the House”.
120
The action of arrest has been part of the common law of the Isle of Man since time immemorial (Deemster Cowley
at 393 in In re Lethaby) or more specifically since no less than several years prior to 1736 (the first written evidence
of the right to an action of arrest is contained in the Fourth Law of 1737 agreed at Castle Rushen in 1736 which refers
to “accons of arreast have for several years past been commenced in the Court of Chancery of the Isle”). It is
interesting to note that the first four “arrest acts” all dealt with historical abuses of this empowering cause. The
preamble to the Fourth Act of 1737 (not recorded by Deemster Cowley; see First Volume of the Isle of Man Statutes )
notes the many “groundless and vexatious” actions were commenced and prosecuted without any “just” cause
(“Fourthly, And whereas many groundless and vexatious Accons of Arreast have for several Years past been
commenced in the Court of Chancery of this Isle, and prosecuted without any just Cause of Accon appearing when the
same came to an Issue, and yet the Defendants had notwithstanding been put to great Difficultys to find Bail, or
otherwise lye in Prison, and sometimes Vessels and Merchandizes have been arrested till the Accon came to a
Hearing, whereby diverse Inconveniencys have happened, especially to trading Persons; be it therefore ordered,
declared, and enacted by the Authority aforesaid, That if any Person or Persons whatsoever shall hereafter bring any
Bill of Accon, then and in such Case it shall be lawfull for the Defendant so injured to bring his Accon against such
Complainant for the Costs and damages sustained by him by Reason thereof”; Fourth Law of 1737, Statutes of the Isle
of Man, Volume I); and the Arrests Act 1748 records that wrongfully “detention of many honest people” by
“unjustified” actions of arrest. As a result, both acts provide those wrongfully detained with the right to sue for
damages and costs.
121
The most notable one being that release can be obtained upon agreeing to appear in the action for the debt.
122
See section 1(3) and 1(4) of the Action of Arrest Act 1953. It is unlikely that a few days imprisonment could occur
under this system.
123
See also section 8 of the Act. There is a duty to proceed with diligence or costs may be award to debtor.
124
See Raad v Sturgeon (1)
125
The owner of the Stanford Financial Group a multi billion dollar global wealth management group who stands
accused of running a massive Ponzi scheme. In November 2008 he staged a Twenty20 match between England and
Page 20
the self-styled saviour of English Cricket 126 is currently unknown. Where the arrest of an
individual127 could speed the determination of the rights of multiple Manx creditors that
would be an another factor in favour of personal arrest.
35.
The court has shown itself increasingly willing to balance the interests of the petitioner and
the defendant in actions that may engage human rights. However, to prevent the personal
arrest falling foul of the arbitrary leg of proportionality as well as to provide further
safeguards to defendants, it is averred that a balance of convenience test could be ascribed to a
High Court Directive.
the Stanford Superstars, an all-star team of Caribbean players awarding the victorious Superstars $US20 million ($31
million).
126
http://www.halifaxcourier.co.uk/sports-mailbag/Cricket39s-saviour-Sir-Allen-Stanford.5016918.jp
127
meeting the statutory criteria for arrest.
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4.1
PETITION FOR RESTORATION OF THE STATUS QUO
4.2
Introduction
36.
The petition for the restoration of the status quo is an ancient Manx common law remedy. It is
a very specific remedy which can be used if a person’s land is damaged or encroached. The
right to the petition expires after six months. The requirements for a petition were clarified by
the Manx appeal court in Guyler v Young128. A petitioner must establish a prima facie case that
a right existed, either a right of ownership or a right of easement over land 129, and that the
right had been infringed, and nothing more130. On proving that case, the petitioner is entitled
to an “order for the restoration of the status quo”, that is, an order for the restoration of the
state of affairs prior to the alleged infringement. Such status quo orders have ranged from
demolishing an extension131 to re-erecting a whole building132.
37.
The substantive issues are not to be determined at the summary stage133. The defendant to the
petition has the right to challenge the proceedings in the Chancery Division134 by cross
petition. On such hearing, the court may uphold the order, accept a party’s undertaking to
restore the status quo and/or grant damages in lieu of the order135.
4.3
Nature of the order
38.
The petition whilst proceeding summarily is a full mandatory order. It is averred that it is
neither correct to describe the order as interim or interlocutory relief, since there will be no
return date unless the defendant initiates a further substantive hearing. Therefore, in contrast
to interim injunctions, the burden is shifted to the defendant to prove his cause of action.
39.
The author avers that although there being no reported reference to such, the status quo
petition has the potential to be a draconian remedy. The cases show that the threshold for
128
Guyler v Young 1952 – 60 MLR 23 (SGD)
In comparison with the common law action for trespass to land there is no need to show undisputed ownership
Lace v Teare 1961-71 MLR 32 (CLD)
130
p29 Ibid., “I think the point is that the petitioner must establish the existence of his right, whether it be a right of
ownership of land, or whether it be a right of easement over land, before he can obtain an order, and he must also
establish thtat that right has been infringed, and nothing more”
131
See Simmons and Simmons v Saunders 1981-83 MLR 42 (CLD)
132
See Faragher and Sengoles v Watterson , Common Law Division (Ramsey), June 26th, 1893, unreported ,
refererred to in Guyler v Young, Ibid.
133
See Simmons v Saunders, Ibid., Guyler v Young (1)
134
Simmons, Ibid.
135
Young v Guyler 1952 – 60 MLR 86 (ChD). In the leading case of Guyler v Young, the cross petitioner carried on in
contempt of the court order, and was ordered to pay substantial damages as well as the whole costs of both
proceedings.
129
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establishing the petition is particularly low. For example, in Guyler v Young a plan of a
carriageway marked in yellow but not referred to in the deeds was sufficient to establish a
prima facie case for a right of way. Such trifling evidence produced an order for a whole
building to be removed. Accordingly, to determine whether it should be retained it is useful to
compare it with an interim injunction which could in theory be available on the same set of
facts.
4.4
Interim Injunction
40.
The High Court has the power to grant an interim injunction before judgment where it
considers it just and convenient to do so 136. The court applies the American Cyanamid
principles137. Further, it is now established that the decision is more accurately an assessment
of whether granting or withholding the injunction at that stage is more likely in the end to
produce a just result138. In contrast, justice has no inherent role in a status quo petition. In
contrast, in Chohan the court approved the Chadwick principles139 which provide a cautious
approach to mandatory interim injunctions.
136
See Section 42 of the High Court Act 1991 -“ (1) The High Court may by order (whether interlocutory or final)
grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do
so.(2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just..”;
Order 38 of the Rules of the High Court of Justice 1952 - “In any cause or matter in which an injunction has been, or
might have been claimed, the plaintiff may, before or after judgment, apply for an injunction to restrain the defendant
or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the
commission of any injury or breach of contract of a like kind relating to the same property or right, or arising out of
the same contract; and the Court may grant the injunction, either upon or without terms, as may be just.”
137
The principles laid down by Lord Diplock in the House of Lords case of American Cyanamid Co v Ethicon Ltd.
[1975] A.C. 396 (“the American Cyanamid Principles”). That approach has been various approved in the Manx courts
( see for example Deemster Kerruish in In re Poyiadjis at [270], Deemster Kerruish in Cambridge Gas at [18] to [19];
and Deemster Cain in Locke v Bellingdon Ltd. and ors., 1999-01 MLR [N-19]. The test is firstly, is there a serious
question to be tried, secondly, are damages an adequate remedy and thirdly, the balance of convenience.
138
See paragraph 64 in the Privy Council in Gujadhur v Gujadhur (PC Appeal No 51 of 2006) ; approved by
Deemster Doyle in Chohan v DHSS, CP 2008/90 (reported online) at at paragraphs 60 to 61.
139
Deemster Doyle in Chohan and Khan v DHSS approved Chadwick J in Nottingham Building Society case [1993]
FSR 468 (approved by the English Court of Appeal in Zockall [1998] FSR 354) where he reviews the various
authorities at page 472 onwards and having reviewed the relevant case law he summarised the principles :
"In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding
consideration is which course is likely to involve the least risk of injustice if it turns out to be "wrong" in the sense
described by Hoffmann J.
Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which
requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns
out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo.
Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree
of assurance that the plaintiff will be able to establish his right at a trial. That is because the greater the degree of
assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is
granted.
But finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his
right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory
stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the
risk of injustice if it is granted."
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41.
The Manx law as it has developed for example in Chohan recognizes the restrictions that the
law imposes on the rights of the defendant. A mandatory injunction carries a greater risk of
injustice than other remedies. Accordingly, the court ought to consider whether it feels a “high
degree of assurance that the plaintiff will be able to establish his right at a trial” before
granting the remedy. The court will only grant mandatory injunction if the risks of injustice if
the injunction is refused sufficiently outweigh the risk of injustice if it is granted.
4.5
ECHR Considerations
42.
It is clear that the courts have a duty to consider the law in line with the ECHR. It is submitted
that as per the action of arrest the status quo petition engages Article 1 of the First Protocol140.
However, there can only be a deprivation of property in the public interest. In contrast to the
action of arrest there would appear to be no such public interest in this case. Further, if, as is
possible, a petitioner sought to remove a habitation, Article 8 would be likely to be engaged.
4.6
Conclusion
43.
As a Manxman the author feels a certain affinity with local laws which are largely unique.
However, that affinity is soon put to one side when considering a law which restricts the
rights of the defendant without a lucid raison d’être. It is averred that the evidential burden is
misplaced. The court does have a duty to weigh competing interests, but that duty is only
confused by the prima facie ease with which the status quo criteria are met.
44.
Although many learned Deemsters have discussed this ancient Manx remedy, none have
stated a peculiarly Manx feature which justifies its retention. The author avers that the only
public interest would appear to be the guarantee of property rights. However, it is argued that
such rights can be protected by the courts through the injunctive relief provided by the interim
relief available under the high court rules. Therefore, the petition should be abolished.
45.
In any event, the 6 month limit is arbitrary. If the action was to be retained, the author would
propose that the limit is a short time limit extending from the date of the applicant’s notice of
proposed works.
140
As in the Action of Arrest, above.
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5.0
SUMMARY
46.
Throughout this paper the author has found himself in the position of Brown’s Manx radical
unsure whether or not to swing the reforming axe. However, in the end, the author’s
conclusion was quite simple. The above analysis has shown that the petition of doleance and
action of arrest are useful and should be retained in their current form and the petition for the
restoration of the status quo abolished. Further, in order to provide certainty to the law, it may
be advantageous for the courts to prescribe a directive detailing the balancing act that will be
performed in determining an application for a personal arrest since the author well recognises
its potential restriction on personal liberty.
Word count: 4496
Paul Rodgers
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